JUDGMENT
1. The two respondents stood charged under Sections 302/34, I.P.C. and 307/ 34, I.P.C. in S.T. No. 507 of 1976 before the Sessions Judge, Azamgarh and they were acquitted by the trial Judge by his judgment dated 29-10-77. After the appeal was admitted this Court directed issuance of bailable warrant against the respondents. It appears that the respondent Jalal Uddin failed to appear in time in terms of the bailable warrant and subsequently he was arrested and he was detained in custody. But subsequently an order dated 26-3-96 recorded by a Division Bench of this High Court he was granted bail. The other respondent is on bail.
2. The case against them was started on the basis of an F.I.R. lodged at police station Gambhirpur by Kishwari, daughter of Mohammad Amin of Maqdoompur. It was stated in the F.I.R. that the complainant Smt. Keshwari and her mother Smt. Masruful and brother Ali Raja and some children were sleeping in the second storey verandah of their house on the night between 21/22-8-76. A lantern was burning in the verandah. At about 12 in the midnight, Jalaluddin and Iqbal came to the verandah through the roof of the house and they started assaulting Smt. Masruful with knives due to old enmity. She raised an alaram which raised the complainant and her brother. The brother went down stairs opened the door and raised hue and cry. The complainant also raised shouts. She too was assaulted by the two accused persons. Their shout attracted the villagers Abdul Salam, Maroof and Jamil and others. They came with lathies and torches into the house of the complainant and they had also seen the accused per sons stabing. On the arrival of the villagers the accused persons jumped from the roof and fled to their house. They were identified by the witnesses and the villagers. The complainant and her mother suffered injuries due to knife blows and the condition of her mother was serious. She was taken to the Sadar Hospital, Azamgarh where she died. The complainant was also admitted in the hospital and she got her report written by Abdul Salam and sent it to the police station. This report was received at the police station in the morning of 22-8-76 at about 8.45 a.m. and Case Crime No. 141 under Sections 324 and 302, I.P.C. was registered at police station Gambhirpur against the two present respondents and investigation was taken up. Two pieces of rope were seized during investigation which were allegedly used for escape. Blood stained materials were also seized and so were the blood stained clothes and a lantern was also taken charge of during investigation. It was the case of the prosecution further that accused Iqbal and Jalaluddin were searched for incriminating materials but nothing was recovered. The alleged witnesses also produced their torches during investigation which were also taken charge of. It is on record that the Kotwari police station at Azamgarh was informed by the Emergency Medical Officer at District Hospital, Azamgarh, about admission of the injured Smt. Kishwari and about production of the deceased Smt. Masruful in a dead condition and deadbody was kept in the mortuary.
3. The injury report of Smt. Kishwari indicated an incised wound on the left arm, incised wound on the left side of the back, a third incised wound in the web of little and ring finger and another on the palmer side of the middle finger and one more on the ring finger. The injuries were fresh, incised and were simple except in jury No. 2 which was on the left side of the back at 11th and 12th dorsal vertebrae oblique. The medical examination was done of 22-2-76 at 2.30 a.m. and the patient was admitted in the Female Surgical Ward.
4. The postmortem examination of Smt. Masruful was held on 23-8-76 at about 8 a.m. It was the deadbody of a middle aged lady of good built aged about 40 years who died a day ahead of the postmortem examination. Rigor Mortis was present in the lower externitus. The omen-tum was protruding out through the abdomen. There were four incised wounds on the left thigh and three penetrating wounds on the abdomen through which the omentum had come out. The peritoneum was found torn under the penetrating wounds of the abdomen. Semidigested food was there in the stomach. The small intestine was found torn. Death was due to shock and haemorrhage as a result of ante mortem injuries.
5. The trial Court had examined 11 witnesses as were produced by the prosecution. The accused persons were examined under Section 313, Cr.P.C. wherein the circumstances appearing against them were put to them. A defence witness was examined at the trial Court. P.W. 1 wehndi Hasan was a close neighbour of the victim. He as sleeping in an open space near his house. He got up on shouts and raised his brother Maroof. They proceeded towards the house of Amin wherefrom the shouts had come. Abdul Salam and Jamil were also found proceeding to their house. The door was open. Ali Raja was standing at the door and he had stated Meri Amma Ko Log Mar Rahe Hain (my mother is being assaulted by some persons). The witnesses reached the second storey and when they were on the stairs they saw Jalaluddin and Iqbal holding Knives. At that point of time Jalaluddin was assaulting Masruful while Iqbal was assaulting Smt. Kishwari. The incident took place in the verandah where a lantern was burning form (sic). The witnesses Hashed their torches and saw the incident in good light. Smt. Masruful was lying on the floor at that time and so was Smt. Kishwari towards the east of Smt. Masruful. On seeing the witnesses the accused persons went to the roof with the help of hanging ropes and fled away. They jumped to the house of Jalaluddin and took away the ropes also. According to this witness, his house lay only 25 to 30 steps from the affected house. It appears that after hearing the shouts he called Maroof and they rushed towards this house. It is important to note that Ali Raja in his first statement to the witnesses, who had come, had not indicated the names of two accused as the assailants of his mother. A motive was suggested in his evidence against Jalaluddin as once he was prosecuted at the instance of Masruful in a case of theft in her house. Jalaluddin got an acquittal in that case but he allegedly went on threatening Smt. Masruful. So far Iqbal is concerned, it was stated that he was a servant in the concerned house. Over some alleged affairs between Iqbal and Smt. Kishwari, this Iqbal was turned out of the house and as such he bore and grudge against Smt. Masruful. When the witness had gone to the affected house the door to the third storey from the second storey was found closed. Evidence shows that Jalaluddin’s house was addjacent to the house of Amin (father of the complainant) and the house of this witness was towards further west intervened by the houses of Iqbal (already dilapidated) and Aainul. This witness has not stated to police during investigation that he had called Maroof and proceeded to the affected house with him. He did not say to the police further that Abdul Salam and Jalil were also proceeding towards the house of Amin. This witness did not tell the In vestigating Officer that he was carrying a danda when the injured persons were taken away. This witness also went back to his house. Before police, however, he had stated that he had arranged for a conveyance and took the injured person to the Sadar Hospital Azamgarh and admitted them. That Jalaluddin and Iqbal were in friendly turm was stated by him in Court but never before. He admitted that he did not go to the house of Jalaluddin after the incident nor did he ask and suggest that people should go there. He had denied to have made any statement to police that the culprits had left with the help of the ropes and jumped on the tiled roof of the house of Jalaluddin. There was, however, such a statement in the case diary. Concerning the manner of his escape, this witness stated that the two miscreants used two different ropes to climb to the roof and each was having a knife in one hand. The witnesses did not try to pull down the ropes nor did they make any attempt to apprehend them. Before the police, however, he had raised a plea that as the accused persons were having knives he did not try to arrest them. His evidence disclosed that while coming to the house of Amin they did not raise any alarm and they had heard cries of the boy with the words that his mother was being assaulted. The witness and others did not raise an alarm even after hearing from the boy about the assault. When they went to the roof of the second floor they did not see any ropes there. The roof of Jalaluddin was about 14 feet below this roof. He had stated that he had seen, if the light of his torch the broken tiles on the roof of the house of Jalaluddin. He further accepted that he had heard only the cry of Ali Raja and of none else.
6. P.W. Mohd. Jamil was another neighbour. He had also claimed to have heard an alarm and he found the other persons at the affected house. He found the minor boy Ali Raja crying by the name of his parents. He claimed to have seen Jalaluddin giving knife blows to Smt. Masruful and Iqbal to Kishwari. On seeing them the assailants climbed to the third floor by the help of hanging ropes and jumped on the roof of the house of Jalaluddin. They also took away the ropes. This witness did not raise any alarm rather he proceeded silently to the second storey through the stairs. About 20 other neighbours had assembled when the assailants escaped. The house of Jalaluddin was surrounded and it was found locked from outside, but female inmates were there. To police the witnesses had stated that the assailants had left the ropes and jumped away. Although this witness saw blood stains near the place of the occurrence, he did not indicate the same to the Investigating Officer. His further cross-examination disclosed that when they bounced upon the assailants, they jumped and escaped.
7. The third witness Abdul Salam also makes a claim to have arrived on hue and cry and to have seen the assault by the assailants with knives and of their escape with the help of the ropes. His cross-examination further disclosed. When they had reached, Smt. Masruful was lying on the floor and Smt. Kishwari was sitting. In that posture, she was assaulted by only one assailant. He had accepted in his cross-examination that he did not see the assailants jumping but he saw them climbing to the roof by ropes and he heard the sound of something falling on the tiled roof.
8. The fourth witness was injured Smt. Kishwari. According to her, she rose on the shouts of her mother and saw Jalaluddin and Iqbal giving her “chaku” blows. She got up and tried to save her mother and her brother Ali Raja fled down stairs. She pleaded with the assailants that her mother may not be assaulted and she too was given knife blows. The witnesses reached thereafter and when they were on the stairs and accosted the assailants as to what were they doing, the assailants climbed to the roof with two ropes jumped to the house of Jalaluddin and took away the ropes. She got a report written by Abdul Salam and sent it to the police station through Maroof. She claims to have got the report written by her own dictation. But it appears that she did not know a good number of words that were used in the written report. The report was written at the hospital at Azamgarh but no information was sent to Azamgarh Kotwali. There was nothing to indicate in the report that the assailants climbed to the roof with the help of ropes. Her attention was drawn to her statement before the police wherein she had claimed to have seen the assailants coming down through ropes and then the assault was made. She was not assaulted by Jalaluddin although she made a claim before the police that she was assaulted by both of them. She changed her version again to say that both had assaulted her. When she was being assaulted her mother was not assaulted then by any assailant. Her cross-examination indicates that Iqbal’s father had deposed against Jalaluddin in the earlier case against him for theft in the house of Smt. Masruful.
9. Dr. S. L. Diwan P.W. 5 had examined the injuries of Smt. Kishwari on the night of the incident. He had sent an information to the police station regarding the death of Smt. Masruful and injury of Smt. Kishwari. On the date of his examination, Smt. Kishwari was not produced in Court and there could be no identification of this injured.
10. Inquest on the dead body of Smt. Masruful was done on the night of 22-6-76 by A.S.I. Kotwali, Azamgarh. Inquest was none without any F.I.R. and although this officer knew that the daughter of the deceased was also admitted in the hospital, he did not examine her nor did he try to ascertain if any F.I.R. was lodged. P.W. 9 Dr. O.P. Khatri had held the postmortem examination on the deadbody of Smt. Masruful which was identified to him by constable Ghurhu Sharma who had been examined as P.W. 8. He did not know the deceased from before and he knew it through the identification of the deadbody by the panch at the time of the inquest. P.W. 10 the Investigation Officer, I.P. Singh, had visited the house of Jalaluddin. The roof was tiled and he found tiles broken. He also seized two pieces of ropes from the house of Jalaluddin. The two ropes were 6 cubits (that is 9 feet) and 8 cubits (that is 12 feet) in length. Although he came to the hospital at about 10.30 a.m. on 23-8-76, he did not try to verify if inquest was made nor did he try to locate where was the deadbody.
11. The learned trial Court had considered the evidence that the courtyard of the house was covered by iron bars and he was of the view that in such a case the assailants could not have reached the second storey through the hanging ropes. It was found by him that although the four witnesses claimed to have come on the sopt on the hue and cry and of having seen the incident, the distance of their houses made it impossible that they would reach on the hue and cry and till then the assailants would go on assaulting the victims. He also disbelieved the witnesses on the ground that although several persons had assembled, none had tried to go to the house of Jalaluddin to apprehend him. The theory of approach and escape through ropes was also disbelieved. The story of ropes was not stated in the F.I.R. He found from the evidence that the tiled roof of the house of Jalaluddin was at a considerable distance from the pucca roof of Mohd. Amin and it was not possible, therefore, to take a jump from one roof to another. The learned trial Court also found that the witnesses were interested one and he had indicated why they obliged the complainant party. The injured Smt. Kishwari was disbelieved with regard to the presence of light. It was claimed by her that a lantern was burning in the verandah and the witnesses also reached the spot with their torches and identification was thus possible. The lantern was made over to the Investigating Officer by Ali Raja which suggests that the Investigating Officer did not find it in its original position of hanging. Smt. Kishwari was also disbelieved on the ground that her mother was sleeping away from the small children. There were contradictions in her statements, as stated by the learned trial Court, regarding approach of the accused persons and about causing of injury to her by one of the assailants or by both of them. The time of lodging of the F.I.R. was also doubted by the trial Court as it was sent to the Court after a considerable delay.
12. The incident took place at about 12 in the night between 21/22-8-76. Immediately after the incident Smt. Kishwari and Smt. Masruful were taken to Azamgarh Hospital and the doctor made an immediate report to the Kotwali police station concerning the injured and the deceased. This report was brought on record as Ext. Ka-4. The doctor had informed the Station Officer of Kotwali police station, Azamgarh, that one patient named Smt. Kishwari wife of Salauddin was admitted to the hospital with multiple injuries at about 2.30 a.m. and was in a serious condition. He had also informed that her mother Smt. Masruful was also brought dead to the hospital and the deadbody was kept in the mortuary. A request was made for taking immediate action. The injury report was proved by the doctor and according to him the injury was examined at 2.30 a.m. There is no doubt of it, therefore, that immediately after the incident the injured was taken to Azamgarh Hospital. The report for the of fence was written by Abdul Salam on the statement of Smt. Kishwari and it was made over to the police station at 8.45 a.m. Inquest was done on the deadbody on 22-8-76 at about 6.30 a.m. through Ext. Ka-7. Naturally there could be no note of an F.I.R. but it is clear in the inquest report that the information of death was given by the ward boy Madhu Kumar Gupta who had carried the doctors slip to the police station. The witnesses of the inquest were all of village Maharajpur but that alone may not be a question on the point of identity of the deceased as according to the doctors report the deadbody was of Smt. Masruful mother of Kishwari and inquest was held on the basis of this report. It is true that action was taken by the police on the basis of the information in the slip from the doctor but this spake of injuries alone and not of the same being caused by enemy hands and the report of the doctor, therefore, could not be read as an, F.I.R. According to Kishwari and Salam scribe of the F.I.R. it was written at the hospital where after Maroof had taken it to the police station. There is sufficient cross-examination to indicate that the words used in the F.I.R. were not those of Kishwari. The discrepancy could not be explained by an argument that about the incident the statements of Kishwari were recorded but about the formality the words of the scribe were used. Kishwari has stated that after scribing the matter was read out in her language only there was thus intentional intrusion by the scribe into the contents of the F.I.R. Smt. Kishwari had reached the hospital along with others. She was in a serious condition and the doctor had sent a slip to the police station as he was required to do. The doctor, however, did not record any statement of Kishwari nor did she offer any statement to the doctor to indicate how the incident had taken place. It is unfortunate that although the inquest was held on 6.30 a.m. and although the police officer of the Kotwali police station knew that the daughter of the deceased was admitted in the hospital in an injured condition, he took no steps to examine the injured and to record her statement. It was asserted that Maroof had carried the report to the police station but there was no signature of Maroof either in the F.I.R. or in any others record to show that it was he who made over the report to the police station.
13. There is a theory of escape by climbing to the roof through ropes. It is, therefore, only possible under this theory to expect that entry was also made in a similar manner. The two ropes were 9 feet and 12 feet is length and the roof of the house of Jalaluddin was 10 to 14 feet below the roof of the third storey of the affected house. It is not understandable how with the shorter rope one could have climbed to the top. Regarding the story of the ropes, it can only be stated that it was a subsequent innovation as that story was not made out in the F.I.R. which was otherwise a detailed one. The witnesses had allegedly reached when assault was still going on and it is stated that with the knife in one hand each assailant had claimbed up through the ropes which seems to be improbable, if not impossible. It is also astonishing that even in that condition when the assailants were precariously hanging through ropes, the witnesses did not attempt to apprehend them or to stop them from escaping. It is quite possible that some assailants had come and had assaulted the two ladies but what seems improbable is that these assailants would go on hurling their weapons at the victims till the witnesses arrived after hue and cry. Normal sequence of events suggest that after hearing hue and cry people would rise from their beds immediately to know what had happened and would then rush towards the affected house. This must take some time and moreso, when the witnesses are not inmates of that house. Smt. Kishwari had stated that she was being assaulted by only one man and at that point of time her mother was not being assaulted as she had already been given the blows and had fallen down. It was too much for the witnesses to say, therefore, that they had seen assault on both the ladies. Regarding lodging of the F.I.R. again, it is gathered from the evidence that the report was written at the hospital. If they could reach the hospital from the village within two hours there was no reason why from the hospital they would take a much larger time to reach the police station and as to why the F.I.R. should have been entered at 8.45 a.m. on the next day. When a deadbody of a lady and a seriously injured another lady were brought to the hospital by the villagers it was normally expected that some of them should have been there to keep proper watch on them but not a single man of Mehndi was a witness in the panchayatnama.
14. Admitted enmity is there with Jalaluddin and suggested enmity with Iqbal. There is enmity inter se between Iqbal and Jalaluddin. It is not appreciable how and why these two persons would join in a single act of assault of these two ladies. The defence suggestion that some unknown miscreants or robbers had committed the offence and known enemies were only implicated after deliberation may not be ruled out.
15. Upon the above analysis of the fact, it is found that the learned trial Court had taken a view of the evidence which could have been logically drawn and the views of the trial Court are not open to be challenged on the basis of the matters on record. The State appeal, accordingly, stands disallowed and the order of the acquittal recorded by the trial Court stands confirmed. If the appellants are in custody under any order of this Court, they must be set at liberty forthwith.